law practice, and I know of no reason why it should not always be substantially followed.

§ 395. The Reply to Defenses of Fraud, etc., in negotiable

Paper.

In an action upon negotiable paper, the defendant may plead fraud or illegality, or that the bill or note was lost or stolen; and it is well settled, that, in showing such fraud, etc., he makes a good prima facie defense, and that the plaintiff must show affirmatively that he is a bona fide holder for value.2" But in such case, how should the issue be made on paper? Upon principle, every pleader who, in submitting evidence, holds the affirmative of an issue must plead the facts upon which the issue is made. It is, however, common, in pleading fraud, illegality, or other matter going to the validity of a bill or note in the hands of an indorsee, to also aver a want of consideration and to charge notice. Is this averment necessary? Is it sufficient for the plaintiff to traverse it, if made, or should he affirmatively allege the facts he is required to prove? I do not find these questions settled upon authority.

In the analogous case of a bill to enforce an equity against one who has obtained the legal title, whether to land or chattels, it is sufficient for the plaintiff to show the equity; he thereby makes a prima facie case against the world. A purchaser for consideration without notice will, however, be protected. In his plea or answer, the purchaser of land must aver expressly that the person who conveyed was seized, or pretended to be seized, when he executed the conveyance, and that he was in possession; must state consideration, and its actual payment, and must deny notice whether it has been averred by the opposite party or not." The purchaser of stock, if he would defend against a plaintiff's prima facie title, must affirmatively state in his answer, and must prove, the facts showing that he was a bona fide purchaser for value.29

In the matter under consideration, the plaintiff, after the defend

26 2 Greenl. Ev. § 172; Byles, Bills, 120; Pars. Notes & B. 188, 189, and notes; Hamilton v. Marks, 63 Mo. 167.

27 Wallace v. Wilson, 30 Mo. 335; Kerr, Fraud (2d Ed.) 431. 28 Weaver v. Barden, 49 N. Y. 286.

ant's showing, can only protect himself by his relation to the paper; in itself, it is good for nothing; but, when one has put his name to a negotiable instrument, the law-merchant, for commercial reasons, will protect the innocent holder, the person who has obtained it in good faith and for value. As we have seen he must prove that he has so obtained it, as must the holder of the legal title to property as against the holder of an equity. It would seem. both from analogy and upon principle, that he should be required to affirmatively plead the facts that thus protect him, which he is required to prove, and that the allegation of notice, etc., in the answer is unnecessary.

§ 396. Departure"-Remedy.

A departure in the reply [as at common law] will not be allowed. It consists in leaving the case as made in the complaint or petition

29 [Variance-Its Effect.

[A variance, in pleading and practice, is a discrepancy or disagreement between the allegations in the pleadings and the proofs adduced to support them. Gould, PL c. 5, §§ 97, 101; Steph. Pl. 85; Shipm. Pl. p. 198. Upon an examination of the Codes, it will be found that variances are of three kinds: (1) material; (2) immaterial; (3) and failures of proof. As to the first, the Ohio Code (section 5294) provides that "no variance between the allegation in a pleading and the proof shall be deemed material, unless it has actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits; and, when it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled; and thereupon the court may order the pleadings to be amended, upon such terms as are just." As to the second, the Ohio Revised Statutes (section 5295) provide that, "when the variance is not material, the court may direct the fact to be found according to the evidence, and may order an immediate amendment without costs." As to the third, the Ohio Revised Statutes (section 5296) provide that "when the allegation of the claim or defense, to which the proof is directed, is improved, not in some particular or particulars only, but in its general scope and meaning, it shall not be deemed a case of variance within the last two sections, but a failure of proof." These provisions are found substantially in the following Codes: Code Civ. Proc. N. Y. §§ 539-541; Rev. St. Ind. §§ 391-393; Code Iowa, §§ 2686, 2687; Gen. St. Kan. pars. 4216-4218; Rev. St. Mo. §§ 2096, 2097; Rev. St. Wis. §§ 2669-2671: Code Civ. Proc. Cal. §§ 469-471; Mansf. Dig. Ark.

in respect to some material matter, in introducing new matter which is inconsistent with, or which does not support it.30 It will not be permitted in any system which pays the least regard to the logic of pleading. If the plaintiff desires to change his position he must do so upon leave by amending his original pleading. In equity no departure can occur, inasmuch as, by the modern practice the replication must be general.31 As a replication is ordinarily under the Code the last written pleading, it is not necessary to speak of departures in subsequent pleadings. A new assignment is not a departure, for it affirms the first pleading by correcting the defendant's mistake in regard to it.

As to the proper mode of correcting a departure, whether by demurrer or motion, courts are not in perfect harmony, but all agree that if the parties go to trial without raising the question, judgment will not be arrested.32 In Indiana, a demurrer to the reply is considered proper, while in Missouri it is said that the defective pleading should be stricken out on motion.

38

less be sustained.

Either remedy would doubt

§§ 5075-5077; Rev. St. Idaho, §§ 4225-4227; Bullitt's Code Ky. §§ 129-131: Gen. St. Minn. c. 66, §§ 120-122; Consol. St. Neb. §§ 4675-4677; Code Civ. Proc. Mont. §§ 112-114; Code N. C. §§ 269-271; Code Civ. Proc. S. C. §§ 190192; Comp. Laws N. D. §§ 4934-4936; Comp. Laws S. D. §§ 4931-4936; Hill's Code Or. §§ 96-98; Comp. Laws Utah, §§ 3252-3254; Code Proc. Wash. §§ 217219; Rev. St. Wyo. §§ 2643, 2644. See, further, Ralston v. Kohl, 30 Ohio St. 92; Piatt v. Longworth, 27 Ohio St. 159; Benninger v. Hess, 41 Ohio St. 69; Philomath College v. Hartless, 6 Or. 159; Faulkner v. Faulkner, 73 Mo. 327; Bank of Pleasant Hill v. Wills, 79 Mo. 275; Dennis v. Snell, 34 How. Pr. 467; Nash v. Towne, 5 Wall. 689; Smith v. Lippincott, 49 Barb. 398; Zeigler v. Wells, Fargo & Co., 28 Cal. 263; Kimbell v. Moreland, 55 Ga. 164; Phillips v. Van Schaick, 37 Iowa, 229; Sussdorff v. Schmidt, 55 N. Y. 319; Engel v. Hardt, 56 Wis. 456, 14 N. W. 625; Barnet v. Ward, 36 Ohio St. 107; Davis v. Guarnieri, 45 Ohio St. 470, 15 N. E. 350; Patterson v. Keystone Co., 30 Cal. 360; Dunn v. Durant, 9 Daly, 391; Volkening v. De Graaf, 81 N. Y. 268; Clore v. Graham, 64 Mo. 249; Waldhier v. Hannibal & St. J. R. Co., 71 Mo. 514; O'Brien v. City of St. Paul, 18 Minn. 176 (Gil. 163).]

30 See 2 Gould, Pl. § 30; 1 Chit. Pl. 644.

31 Story, Eq. Pl. §§ 678, 878.

82 New v. Wamach, 42 Ind. 456; Philibert v. Burch, 4 Mo. App. 470.

33 McAvoy v. Wright, 25 Ind. 22; Bearss v. Montgomery, 46 Ind. 544; HAAS v. SHAW, 91 Ind. 384.

34 Philibert v. Burch, supra; Magruder v. Admire, 4 Mo. App. 133.

35

§ 397. Some general Considerations.

Where a reply is required, a failure to make it renders it unneces sary to prove the facts which should have been met by reply; they are said to be admitted for the purposes of the trial. But if the answer sets up new matter which amounts only to a denial-as, that the act charged was committed by a third person-no reply is necessary, and a reply which states facts inconsistent with the answer may be treated as an argumentative denial. The defendant may waive a reply, and if he shall go to trial as though a reply by way of traverse were in, he shall be deemed to have waived it; ". or it will be considered as having been duly filed; 38 or the court will, after verdict, allow it to be filed nunc pro tunc.3

39

36

35 Hoffman v. Gordon, 15 Ohio St. 211; State v. Williams, 48 Mo. 210; Riddle v. Parke, 12 Ind. 89; Cooke v. Williamson, 11 Ind. 242; Denny v. Indiana & I. C. R. Co., Id. 292.

CHAPTER XX.

OF THE REMEDIES FOR DEFECTIVE PLEADING.

Section 401. Object of this Chapter.

402. Common-law and Equity Remedies-Demurrer defined-Pleas in Abatement.

403. Remedies under the Codes-Special Pleas abolished.

1. The Demurrer.

404. Its Object and Scope under the Code.

405. 1-First, that the Court has no Jurisdiction over the Person of

the Defendant.

406. Second, that the Court has no Jurisdiction over the subject of
the Action.

407. 2-That the Plaintiff has not legal Capacity to sue.
408.

Continued.

408a. Continued-What ground should be stated as to Corporations. 409. Continued-As to showing Plaintiff's Representative Character. 409a. Continued-As to Defective Authority.

410. 3-That there is another Action pending between the same
Parties for the same Cause.

411. 4-That there is a Defect of Parties, Plaintiff or Defendant.
412. 5 That several Causes of Action are improperly united.
413. 6-That the Complaint (Petition) does not state Facts sufficient
to constitute a Cause of Action.

414. Continued-As to improper Parties.

414a. Continued-As to the Statute of Limitations-Common-law, equity, and code Rules.

415. Additional Grounds in certain States -Who may raise the Objection.

416. The Demurrer must distinctly specify the Grounds of Objection -Generally sufficient to state them in Language of Statute.

417. Some general Considerations.

417a. A Demurrer runs through the Record.

418. What does a Demurrer admit?

2. Answers.

419. Defects met by Answer.

3. Motions.

420. Most formal Defects met by Motion-Judgment and Order dis

tinguished.